UPDATED: 1/26/16 8:30 am ET - corrected
Editor's note: Update corrects given name of Brooke Melton in fourth paragraph.
NEW YORK/DETROIT (Bloomberg) -- The lead attorneys in a sprawling group of lawsuits against General Motors over defective ignition switches failed and should be removed, a rival lawyer who helped reveal the deadly flaw urged in a blistering court filing.
Lance Cooper called the collapse of the first trial, held in U.S. District Court in Manhattan last week, “an embarrassing retreat,’’ in a request Monday to U.S. District Judge Jesse Furman to remove co-lead counsels Robert Hilliard, Steve Berman and Elizabeth Cabraser.
The plaintiffs in that trial, an Oklahoma mail carrier and his wife, dropped their suit after the postman was accused of fabricating a check stub to try to buy their “dream” house, leading to their eviction. Robert and Lisa Scheuer had claimed that injuries from an accident they say was caused by the faulty ignition switch ultimately cost them the home.
The failure of the first trial was “the culmination of a long series of poor decisions and mismanagement” by Hilliard, Berman and Cabraser, Cooper said in the filing. A lawsuit he filed over the death of Brooke Melton, who was killed in a 2010 crash of a Chevrolet Cobalt, spurred a massive recall of cars with the flawed ignition switches.
Cooper’s claims are inaccurate and the choice of Scheuer as the first trial was appropriate, Hilliard said in an e-mail.
“There is not a single bit of evidence filed in support of his accusations and we will prove he is off base in our response,” Berman said in an e-mail.
Cabraser didn’t immediately respond to phone and e-mail messages seeking comment on the allegations.
James Cain, a GM spokesman, declined to comment .
GM recalled 2.59 million small cars in 2014 to replace a faulty ignition switch, which has been linked to at least 124 deaths. The switch could be jarred into the “accessory” position, shutting off the engine, disabling power steering and brakes and preventing air bags from deploying.
The company recalled another 10 million vehicles in 2014 for a similar defect. Most death and injury suits were combined in federal court before Furman in Manhattan, who set six claims as bellwether or test cases for trial, starting with Scheuer.
GM has paid $594 million over the deaths and 275 injuries through a compensation fund overseen by lawyer Kenneth Feinberg. The fund was limited, however, to vehicles in the first batch of recalls. The company also is paying $275 million to settle almost 1,400 death and injury lawsuits brought by Hilliard.
Hundreds more cases remain in state and federal courts, with more than a dozen set for trial this year. Cooper has several of these cases pending.
The co-leads shut out other lawyers with cases against GM and assigned work "to increase the billing" of their firms, Cooper said in the filing. The co-lead attorneys chose Scheuer’s claim, "an obviously weak case," to maintain their control over the litigation, he said.
Cooper alleged that Hilliard sought a share of attorneys' fees in a stronger case, brought by the family of James Yingling, who died in a Pennsylvania accident in 2013. Yingling, initially set as the first trial, was replaced by Scheuer after the family’s lawyer, Victor Pribanic "refused to agree to Mr. Hilliard’s demands," Cooper said.
"Mr. Cooper’s comments are inaccurate and untrue," Hilliard said in an e-mail. “Though fee sharing was initially discussed with Yingling’s counsel, it was made clear that we were more than willing to assist in helping him with his case without any sharing of the fees."
Pribanic declined to comment.
Furman gave the lawyers until Feb. 1 to respond to Cooper’s motion, saying he will decide later whether further proceedings are required.
The Scheuer case should never have been tried as a bellwether or test case, Cooper said in the filing. The accident happened after the recall and involved “minimal injuries," he said. “Scheuer is the very definition of an outlier." The car had also been destroyed, leaving a gap in evidence.
Hilliard said Scheuer’s case was selected as a test of whether GM was correct in blaming extra weight on key chains as a cause for switch failures, not because the attorney filed the case and could control it. Though the accident happened after the recall, replacement parts weren’t available at the time, Hilliard said.
Cooper’s filing is "inflammatory" and meant to blow up a multi-district case that “we’ve been working on for two years,’’ Hilliard said in an interview.
Scheuer followed GM’s recall advice, using a single key, he said. “If this jury had found a defect then the entire recall would have to be redone,” he said. “The Yingling case did not offer such an opportunity to protect the entire class of GM drivers."
"The issue isn’t damages but how many GM customers will benefit from a verdict on this fact pattern," Hilliard said. About 600,000 vehicles with flawed switches have yet to be fixed, Hilliard said, citing GM testimony for the suits.
“Why would folks think they need to get this fixed if they’re safe with a single key?" he asked. Letting them know they may not be safe is “textbook bellwether," he said.
Hilliard said Cooper had been on the executive committee for the plaintiffs but had dropped out last year.